Speaker 1: Welcome back to fellow conspiracy realist. Tonight's classic episode is
Speaker 1: I think a great window into unprecedented times hashtag no pun.
Speaker 2: Left behind unprecedented presidential chaotic times. Yeah, can a president
Speaker 2: pardon themselves? Is a question that you know, got a
Speaker 2: lot more exploration when it became kind of a little
Speaker 2: more of a possibility that it might happen. And then
Speaker 2: this is really laying out the groundwork of the argument
Speaker 2: you know, for and against this concept.
Speaker 3: And the answer is that, yeah, obviously a president can
Speaker 3: parton themselves. Right, we don't even need this episode. Let's
Speaker 3: get out of here.
Speaker 2: Yeah. Yeah, it's not as simple, quite as simple as that.
Speaker 2: It's just some nuance to this convom.
Speaker 1: Yeah, we're speaking with Professor Brian C. Coult, who is
Speaker 1: I would say, still the top legal mind on this
Speaker 1: very specific question. And Professor profess us or called points
Speaker 1: out several times things that just sound weird if you
Speaker 1: weren't born in the US or live here where it's normalized,
Speaker 1: Like talk to somebody from any other part of the
Speaker 1: world and look at their reaction when you say, well, yeah,
Speaker 1: kind of a US president can be a felon and
Speaker 1: can run for office.
Speaker 3: They just can't be from Austria.
Speaker 1: They just can't be Arnold Schwarzenegger. Dang from UFOs to
Speaker 1: psychic powers and government conspiracies. History is riddled with unexplained events.
Speaker 1: You can turn back now or learn this stuff they
Speaker 1: don't want you to know.
Speaker 3: Welcome back to the show. My name is Matt, my
Speaker 3: name is Nola.
Speaker 1: They call me Ben. We are joined with our super
Speaker 1: producer Paul, pardon me, decand and most importantly, you are here.
Speaker 1: You are you, and that makes this stuff they don't
Speaker 1: want you to know. This is a very special episode
Speaker 1: for us today, friends and neighbors. In a way, it
Speaker 1: is a follow up or I would see a spiritual
Speaker 1: successor I love that to an earlier episode that we
Speaker 1: did back in twenty seventeen, we explored the strange case
Speaker 1: of Yellowstone's Zone of Death, a small area of land
Speaker 1: in rural America where an odd loophole allows, what's the
Speaker 1: best way to say, guys, allows in theory, someone to
Speaker 1: commit a crime and avoid prosecut.
Speaker 4: Yeah, sort of like a purge zone where you could
Speaker 4: just you know, all bets are off billy nilly crime
Speaker 4: down USA. But as it turns out, with today's as
Speaker 4: with today's question not quite so simple. So maybe listen
Speaker 4: back to that episode if you haven't heard it in
Speaker 4: a minute.
Speaker 1: Yes, and spoiler alert for all of you would be
Speaker 1: super villains in the crowd today, it will not work
Speaker 1: in practice. Do not attempt it. However, in this episode
Speaker 1: we relied heavily on the work of Professor Brian c. Coult,
Speaker 1: the man who discovered the loophole in the first place.
Speaker 3: And he actually wrote back to us and gave us
Speaker 3: a few what would you call them, just some feedback
Speaker 3: on some of the things we discussed. One of the
Speaker 3: major ones is it's definitely cult as insult cult.
Speaker 1: Yes, and this when we received this email, we were
Speaker 1: delighted because in the course of our research for the
Speaker 1: Yellowstone episode, we learned more about the professor's work, not
Speaker 1: just concerning the zone of death. We learned that for years,
Speaker 1: Professor Cult has investigated a question increasingly important and relevant
Speaker 1: in the realm of American politics. It is this, can
Speaker 1: a president pardon him or herself? And that's what we're
Speaker 1: looking at today. But today, you see, we are lucky
Speaker 1: enough to go directly to the prime source. Friends and neighbors,
Speaker 1: We would like to introduce you to Professor Brian Cault.
Speaker 1: Thank you so much for joining us on the show today.
Speaker 5: Professor, Oh, thanks guys, glad to be here.
Speaker 3: First off, can you tell us, just in your own words,
Speaker 3: what you do every day, What are you studying, what
Speaker 3: are you teaching.
Speaker 5: Well, I'm a law professor at Michigan State University and
Speaker 5: I teach towrts and administrative law, but my research has
Speaker 5: pretty much always focused on constitutional law and more recently
Speaker 5: the constitutional law of the presidency, things like pardons, impeachment,
Speaker 5: twenty fifth Amendment, that sort of stuff.
Speaker 1: Fantastic, So first things first, Professor, I think what would
Speaker 1: benefit everyone in our audience right now would be to know,
Speaker 1: in approachable terms, what is a presidential pardon. We hear
Speaker 1: the term thrown around a lot, and it seems like
Speaker 1: occasionally there are also misconceptions about this.
Speaker 5: Yeah, so there definitely are. Presidential pardon is actually a
Speaker 5: range of possible things, but at its fullest extent of
Speaker 5: pardon forgives an offender for the crime that they committed.
Speaker 5: That's the most common way it's practice. It's usually someone
Speaker 5: who's already served their sentence, but the pardon sort of
Speaker 5: removes the conviction from his record removes any sort of
Speaker 5: consequences that remain, so if he's still suffering from some
Speaker 5: civil rights deprivations, like he can't own a gun or
Speaker 5: can't get certain licenses, those go away along with the conviction.
Speaker 5: The president can also pardon people before they've been convicted,
Speaker 5: or even before they've been charged with anything. And if
Speaker 5: he does that, then by getting rid of any sort
Speaker 5: of criminal consequences for the person's actions, that can prevent
Speaker 5: them from going to prison. And if the person is
Speaker 5: in prison in the middle the sentence, the pardon would
Speaker 5: free them. The pardon can also be something less than that.
Speaker 5: It includes the power to commute a sentence, so you're
Speaker 5: not overturning the conviction, but you are shortening the sentence,
Speaker 5: maybe letting them go earlier or immediately. There's also the
Speaker 5: power to remit fines. If you had to pay a fine,
Speaker 5: they can the president can make them pay you back.
Speaker 5: Important limits on this, though, are that the president only
Speaker 5: has this power with regard to federal offenses, and it
Speaker 5: has to be something you've already done, so the president
Speaker 5: can't pardon you in advance and give you sort of
Speaker 5: a free path to commit crimes. That then won't be crimes. Finally,
Speaker 5: there is an exception for impeachment because the Constitution makes
Speaker 5: the impeachment process separate from the criminal justice process. So
Speaker 5: if someone's being impeached, the president can't do that. You
Speaker 5: can't use the pardon to interfere with or overturn the
Speaker 5: result of an impeachment.
Speaker 3: Can you clear up for us just a little bit,
Speaker 3: what exactly is the state of being impeached and how
Speaker 3: does that relate to being fired from a job or
Speaker 3: having a vote of no confidence?
Speaker 5: Sure, So the impeachment process is People talk about impeachment
Speaker 5: to refer to the whole process, but impeachment is just
Speaker 5: the first part. So the House of Representatives, by a
Speaker 5: simple majority vote, can impeach any executive or judicial officer
Speaker 5: of the federal government, and that's kind of like indicting someone. Basically,
Speaker 5: the impeachment is an accusation, and so if the majority
Speaker 5: of the House votes to impeach, then you are impeached.
Speaker 5: But that just means you're on trial in the Senate,
Speaker 5: and the Senate is the decision maker. You're on trial
Speaker 5: in the Senate. The vice president presides over the Senate.
Speaker 5: But if the president is impeached and on trial, then
Speaker 5: the Chief Justice of the United States presides, and if
Speaker 5: a two thirds majority of the Senate boats a convict,
Speaker 5: then you're convicted. You're removed from office at that point,
Speaker 5: unless you are no longer in office. That's a whole
Speaker 5: other that's a whole other chapter of my last book.
Speaker 5: Can you impeach people after they've left office? But impeachment again,
Speaker 5: just refers to the accusation. It's like the indictment.
Speaker 1: Oh, I see, so not immediately in and of itself
Speaker 1: a proven thing, just an accusation exactly.
Speaker 4: It was like Clinton, for example, you know, did not
Speaker 4: get removed from office, but was impeached. Correct Or is
Speaker 4: am I misremembering that?
Speaker 1: Censured?
Speaker 5: I believe, yes, yeah, Clinton, Clinton was impeached, Andrew Johnson
Speaker 5: was impeached. Neither of them were convicted. So it's a
Speaker 5: it's a blight on the record. I don't know anyone
Speaker 5: who would invite an indictment and say it's no big deal.
Speaker 5: But without being convicted, he wasn't found responsible for whatever
Speaker 5: it is he did.
Speaker 4: Have we seen a successful full realization of the impeachment
Speaker 4: process from a president. I can't think of.
Speaker 5: One, not of a president. The only people convicted under
Speaker 5: the federal system have been judges.
Speaker 1: And going back to this concept of pardons, we're interested
Speaker 1: in learning a little bit about your personal story. I
Speaker 1: believe you were some of your first published work on
Speaker 1: this concept occurred in nineteen ninety six during your time
Speaker 1: with the Yale Law Journal, or you wrote for the
Speaker 1: Yale Law Journal in this regard, when did you first
Speaker 1: begin investigating this question and what originally inspired you to
Speaker 1: do so.
Speaker 5: So I was a law student at Yale and I
Speaker 5: was taking a criminal procedure class. And people make fun
Speaker 5: of Yale sometimes Yale Law School for being overly theoretical,
Speaker 5: and sometimes that's that's a fair, uh fair accusation. But so,
Speaker 5: for instance, in our criminal procedure class, we were talking
Speaker 5: about presidential pardons, which is not really an important part
Speaker 5: of criminal procedure in the ordinary course of things. But
Speaker 5: the professor had some theories and we were talking about
Speaker 5: the whole structure of the constitution. And you know, okay, great,
Speaker 5: how that's how it works in practice, but how is
Speaker 5: it in theory. That's what we really want to know.
Speaker 5: So we're talking about pardons, and I raised my hand
Speaker 5: and I said, can the president pardon himself, and Professor
Speaker 5: thought about it for a second, said I don't know.
Speaker 5: Why don't you look into that? So that weekend I
Speaker 5: went to the library and I read a bunch of stuff.
Speaker 5: And I came back on Monday and I said, well,
Speaker 5: I did some research and can't say for sure, but
Speaker 5: I think the better argument is that he can't. And
Speaker 5: he said, well that sounds interesting. Why why don't you
Speaker 5: write something up. I'll you know, I'll call it an
Speaker 5: independent study. You get a couple of credits for it,
Speaker 5: maybe you could get it published somewhere. So I spent
Speaker 5: the next weekend doing a rough draft of that, submitted
Speaker 5: it to the Yale Law Journal, got rejected. Asked the
Speaker 5: professor olsh I sent it around to other places. He said, well,
Speaker 5: you know law reviews. The way that works when he
Speaker 5: publish is as a student, it's kind of hard to
Speaker 5: get published. Send it out to a hundred places. You'll
Speaker 5: probably get a hundred rejections, but who knows, maybe you'll
Speaker 5: be lucky, you'll get ninety nine rejections. And before I
Speaker 5: did that, I resubmitted it to the Yale Law Journal
Speaker 5: and they decided to take it. On the second try.
Speaker 5: One of the main concerns about publishing it was it
Speaker 5: just it seemed like a ridiculous thing to even think about, right, like,
Speaker 5: why would a president, how could that ever happen. This
Speaker 5: was in the Clinton administration, It was before Whitewater really
Speaker 5: got heated up. It was before people started asking about
Speaker 5: the self pardon in the Clinton contexts. So my first
Speaker 5: task was just sort of making it seem relevant. So
Speaker 5: I talked about Nixon, and Nixon had asked his lawyer
Speaker 5: about it, and his lawyer said that Nixon could if
Speaker 5: he wanted, pardon himself, and some of the others in
Speaker 5: the administration said he couldn't. So it was talked about then.
Speaker 5: Some people speculated about it a little bit at the
Speaker 5: end of the George H. W. Bush presidency, which back
Speaker 5: then was not that far in the past, when he
Speaker 5: pardoned all of the Iran contract defendants after he had
Speaker 5: lost the election, and some people thought maybe he'll pardon himself.
Speaker 5: But it was you know, they made fun of it,
Speaker 5: they said, this is kind of kind of out there.
Speaker 5: And what I think is most important about this, and
Speaker 5: I continue to say this is the fact that it
Speaker 5: seemed unlikely, the fact that it seemed out there is
Speaker 5: exactly why it needed to be written about then, because
Speaker 5: now you see this fast forward to twenty eighteen, President
Speaker 5: Trump says he can pardon himself. Now everyone's talking about it,
Speaker 5: and no one can make the arguments that they have
Speaker 5: about self pardons without thinking about Trump. And if you
Speaker 5: don't like Trump, you don't want him to be able
Speaker 5: to pardon himself. And if you do like Trump, you
Speaker 5: do want him to be able to pardon himself. And
Speaker 5: the Constitution doesn't care if you like Trump or not.
Speaker 5: Either presidents can pardon themselves or they can't. So really,
Speaker 5: the only time you can get the real analysis, get
Speaker 5: the real answer to the question is when it's purely hypothetical,
Speaker 5: and at that time it was, and so I wrote
Speaker 5: at the time what I thought was the best argument
Speaker 5: against self pardons being constitutional. It was sort of a
Speaker 5: curiosity out there for many years, and then a few
Speaker 5: years ago, in twenty twelve, I wrote a book that
Speaker 5: looked at a bunch of these sorts of questions. Can
Speaker 5: the president be impeached while he's after he's president? Can
Speaker 5: you prosecute a sitting president? Can the president pardon himself?
Speaker 5: What about Section four of the twenty fifth Amendment for
Speaker 5: disabled presidents. There's a loophole and term limits where where
Speaker 5: Obama or George W. Bush could come back into office
Speaker 5: looking at sort of crazy things like that, but again
Speaker 5: with the idea of looking at it when it's not happening,
Speaker 5: so that we can figure out what the right answer
Speaker 5: is and not what the politically preferable one for us is.
Speaker 5: And the book came out in twenty twelve, and the
Speaker 5: argument about self pardons, I added some arguments against them.
Speaker 5: I also looked at the other side, so the book
Speaker 5: gives both sides of the argument on it. But again
Speaker 5: in twenty twelve, it's still all seemed hypothetical. So I'm
Speaker 5: glad that I said what I had to say before
Speaker 5: I knew whether whether I wanted the p to partner
Speaker 5: himself or not.
Speaker 1: Absolutely, And that book is constitutional cliffhangers, a legal guide
Speaker 1: for presidents and their enemies.
Speaker 4: So it's interesting you spent so much time laying the
Speaker 4: groundwork and answer asking these questions in a hypothetical bubble
Speaker 4: kind of and now we're seeing maybe the first example
Speaker 4: of a president where these questions are pretty relevant because
Speaker 4: of potential dealings before he was president. With his very
Speaker 4: complex business network and things like that that maybe haven't
Speaker 4: quite been in play in the way that we're seeing now,
Speaker 4: do you see it that way?
Speaker 5: Yeah? And so the book tries to sketch out these
Speaker 5: sort of hypothetical scenarios just to illustrate, just to make
Speaker 5: it make it more lifelike, give some color to it.
Speaker 5: And a lot of the things that I try to
Speaker 5: put in there, I was thinking about, like if this happened,
Speaker 5: what would have to what would have to happen before
Speaker 5: a president would partner himself. But it have to be
Speaker 5: a really weird situation. So that's part of the question
Speaker 5: is when would it happen, what would it look like?
Speaker 5: And I can't see the future, but I think that
Speaker 5: the book holds up pretty well. In the chapter on
Speaker 5: can you prosecute a sitting President? It sort of, I
Speaker 5: don't know. It resonates a little bit with what's been
Speaker 5: going on this last year and a half. The self
Speaker 5: pardon chapter, similar things, the one on twenty fifth Amendment,
Speaker 5: which people are talking about you. When I wrote this book,
Speaker 5: I had to try to convince people one of these
Speaker 5: things might happen someday. It would be good if we
Speaker 5: thought about them now, and then within six months of
Speaker 5: Trump coming in, we had three of the six chapters
Speaker 5: in the news for if you count the people saying
Speaker 5: that they should impeach Hillary Clinton, and so, yeah, I
Speaker 5: didn't think any of this would be relevant anytime soon.
Speaker 5: I didn't know we would elect a president who tried
Speaker 5: to hit for the cycle based on my book.
Speaker 1: And one thing that is fascinating about various conversations we've
Speaker 1: seen regarding the concept of self pardoning is, well, I'd
Speaker 1: like to go back to the earlier example you alluded
Speaker 1: to with Nixon briefly in some work. It was surprising
Speaker 1: to me and I think to many of us to
Speaker 1: learn that Nixon had reportedly asked his own legal team
Speaker 1: about this concept way back during his time in office.
Speaker 1: Is that correct.
Speaker 5: Yeah, I'm not sure if he asked the lawyers or
Speaker 5: if he just said to the lawyers, what are my
Speaker 5: options and they came up with that, But a pardon
Speaker 5: was definitely something that was important, and so the question was,
Speaker 5: if he's going to get a pardon, does he have
Speaker 5: to wait and get it from Ford if he resigns,
Speaker 5: or can he give it to himself, or you know,
Speaker 5: maybe they wouldn't have even prosecuted him. We're not sure.
Speaker 5: So it was even then, I know it was very real.
Speaker 5: At the time, it was still hypothetical. And the lawyer said,
Speaker 5: if you pardoned yourself. The option was presented as you
Speaker 5: pardon yourself and then you resign, because just politically, there's
Speaker 5: no way that you could do that and avoid impeachment.
Speaker 5: Impeachment was already the process was already rolling. That would
Speaker 5: have just accelerated it, and that would have been the end.
Speaker 5: And he knew it. He knew it would have been
Speaker 5: the end.
Speaker 3: Can we jump back to Article two, Section two of
Speaker 3: the Constitution just to really go over and lay the
Speaker 3: groundwork of exactly what the Constitution says. A pardon is sure.
Speaker 5: So I can pull up my little copy of the
Speaker 5: Constitution here, awesome Article two. Article two talks about the presidency,
Speaker 5: and here we go. Article two, Section two, Clause one,
Speaker 5: the president dot dot dot shall have power to grant
Speaker 5: reprieves and pardons for a against the United States, except
Speaker 5: in cases of impeachment. And that's it. That's all it says.
Speaker 3: So everything else is just us kind of deciding.
Speaker 4: Pretty open and with that language, that pretty vague language,
Speaker 4: you get what I've seen described as one of the
Speaker 4: most king like powers of the presidency. That's how it appears,
Speaker 4: and I think that's pretty accurate. I can't remember where
Speaker 4: I saw that, but it just seems like a wave
Speaker 4: of the hand and all your sins are wiped away.
Speaker 5: Yes, and it is one of the most king like
Speaker 5: and I think just sort of thinking about Trump and
Speaker 5: the pardon power, it's it's easy to see why it's
Speaker 5: very appealing to him because it's the most king like,
Speaker 5: or you could say, the most CEO like. He just
Speaker 5: sort of signs this paper and he doesn't have to
Speaker 5: go through Congress. He doesn't really have any potential for
Speaker 5: a court reviewing it because under the so called political
Speaker 5: question doctrine, the courts will not look he had a
Speaker 5: pardon and decide if it was warranted or not. So
Speaker 5: it's unreviewable in court. And he just says it and
Speaker 5: it happens. He doesn't even need a lot of people
Speaker 5: to sort of follow along. It's not like something he
Speaker 5: has to build support for. If he says, let this
Speaker 5: guy out of prison, they let that guy out of prison.
Speaker 5: So it's the closest thing, like you said, to what
Speaker 5: a king could do, and it is it is very tempting.
Speaker 5: I can imagine for presidents to look at that and
Speaker 5: think about how they might use it.
Speaker 1: And we know that traditionally presidents have not immediately entered
Speaker 1: office and began exercising this ability to pardon people. But correctly,
Speaker 1: if I'm wrong here, did the current president, Donald Trump,
Speaker 1: as we record this, did he begin pardoning people earlier
Speaker 1: than in his time in office than other presidents?
Speaker 5: Well, in recent history there's been sort of a shift.
Speaker 5: Presidents have pardoned less recently than they did in the past,
Speaker 5: and they sort of waited till the end to do
Speaker 5: many of them. But it wasn't the earliest in a
Speaker 5: presidential term that a president had done it. It was unusual,
Speaker 5: but it wasn't unheard of. And in a way that's
Speaker 5: actually a good thing because the design of the part
Speaker 5: and power. We talk about it being a king like power,
Speaker 5: but remember the president's not a king. And the whole
Speaker 5: reason to give the president this power instead of giving
Speaker 5: it to say, Congress, by a congressional vote, you give
Speaker 5: it to the president because the president is politically accountable.
Speaker 5: He's always politically accountable, even though he doesn't run for
Speaker 5: reelection for two more years, even if he's in his
Speaker 5: second term and not going to be running for reelection.
Speaker 5: He's politically accountable to the whole country all at once.
Speaker 5: He's got political capital to spend, and that's where the
Speaker 5: framers of the Constitution wanted the power to reside. So
Speaker 5: if presidents do what President Obama did by waiting until
Speaker 5: after the election to commute all of those sentences and
Speaker 5: the disproportionate sentences for drug offenses, he'd been talking about it,
Speaker 5: but he didn't do it until after the election, Or
Speaker 5: President Clinton on his last day in office, pardoning Mark Rich,
Speaker 5: pardoning Susan McDougall, pardoning Roger Clinton, his own brother, waiting
Speaker 5: until after the election when he's not at all politically accountable.
Speaker 5: Or President George H. W. Bush partnering the Iran counter
Speaker 5: defendants again after the election. The president is supposed to
Speaker 5: be politically accountable. It's sort of this little loop that
Speaker 5: he still has the power even when he's not. But
Speaker 5: that's not how it's supposed to work. So when president's
Speaker 5: pardon early, that's good because then that means that Congress
Speaker 5: can respond and the voters can respond in the term elections,
Speaker 5: or in the presidential election.
Speaker 4: All right, we're going to be right back with more
Speaker 4: from Professor Called.
Speaker 6: After a quick sponsor break, and we're back Professor Called.
Speaker 3: Please correct me if I'm wrong, but I'm just going
Speaker 3: to make a statement here that is what I believe
Speaker 3: to be true. My understanding is that much of law
Speaker 3: is based upon the previous findings and judgments that have occurred,
Speaker 3: Like the guiding principles of what is now law is
Speaker 3: from the past.
Speaker 5: Right, Yes, to the extent that we have precedent, we
Speaker 5: take those presidents seriously or are bound by them, depending
Speaker 5: on what kind of precedent it is.
Speaker 3: Is there any foundational case or president that has to
Speaker 3: do with this at all? A president pardoning himself.
Speaker 5: Well, we don't have any case law directly on point
Speaker 5: on presidents pardoning themselves. The argument against self pardons relies
Speaker 5: on a whole bunch of theories and doctrines that haven't
Speaker 5: really been tested either. It really is fair to say
Speaker 5: that if a president did this, it would be completely unprecedented.
Speaker 5: Now I'll let me back up a little bit. There
Speaker 5: are cases in the past of other people with pardon
Speaker 5: powers purporting to pardon themselves. Mayors and governors, and those
Speaker 5: cases are sort of obscure. They hadn't really been tested
Speaker 5: in court, and so we don't have any precedent from
Speaker 5: those either. But even if we did. The US Constitution
Speaker 5: presidential pardon power is different, is distinct from any state
Speaker 5: or local pardon power.
Speaker 3: What was doctor Bonham's.
Speaker 5: Case, So this was a British case back in the
Speaker 5: seventeenth century, and the issue in that case is I
Speaker 5: would say, the power of Parliament over the King and
Speaker 5: the power of the common law over the parliament. So
Speaker 5: I don't know, it's sort of a fundamental case for
Speaker 5: judicial review. People think about it as looking at the
Speaker 5: ability of courts to strike down statutes or not. I
Speaker 5: haven't thought about it much in terms of the pardon power.
Speaker 5: But basically the principle of Bonds case. What you'll see
Speaker 5: it's cited for is people will say, if there's a
Speaker 5: statute that Parliament passes, because this is an English case
Speaker 5: and it's contrary to what have you natural law or
Speaker 5: common right and reason was how they put in that case,
Speaker 5: then then the judges have to they have to declare
Speaker 5: it void. And so again this sort of spawned the
Speaker 5: concept of judicial review. A court looking at something that
Speaker 5: Congress has done or that a president has done. If
Speaker 5: it's illegal, then the court has to say so. They
Speaker 5: have to say what the law is. And if the
Speaker 5: law is that this statute is unconstitutional, then they're supposed
Speaker 5: to say so. The actual case was about, you know,
Speaker 5: sort of a weird medical licensing issue back in seventeenth
Speaker 5: century England. So I'm not I'm not real up to
Speaker 5: date on what exactly was going on, doctor Bonham, and.
Speaker 3: The Washington Post just cited it as a foundational case
Speaker 3: for possibly this subject.
Speaker 1: And as we're speaking about some popular sources of media
Speaker 1: and news here in the US, Professor, earlier in May
Speaker 1: of twenty seventeen, you wrote a piece for the Wall
Speaker 1: Street Journal about the twenty fifth Amendment and specifically section four.
Speaker 1: I believe we mentioned it briefly at the beginning of
Speaker 1: our conversation today, but I was wondering if you could
Speaker 1: tell us and the audience what the significance of Section
Speaker 1: four of the twenty fifth Amendment is in this conversation.
Speaker 5: Well, Section four of the twenty fifth Amendment is where
Speaker 5: the sections three and four deal with presidential disability. If
Speaker 5: the president is unable to discharge the powers and duties
Speaker 5: of his office. Then Section three allows him to say
Speaker 5: so and hand over power to the vice president, and
Speaker 5: then when he's better, he says, okay, I'm better now
Speaker 5: and he takes power back. Section four is thru when
Speaker 5: the president can't declare that he's disabled or won't, and
Speaker 5: it allows the vice president and a majority of the
Speaker 5: cabinet to declare that the president is unable to discharge
Speaker 5: the powers and duties of his office. Then the vice
Speaker 5: president becomes acting president. It doesn't remove the president from office,
Speaker 5: and the president is still in office. He just is
Speaker 5: temporarily stripped of his powers and he can say I'm
Speaker 5: not disabled either right then if there's a disagreement there
Speaker 5: or if he's unconscious, once he regains consciousness, he can
Speaker 5: say I'm fine. If the vice president and cabinet disagree,
Speaker 5: then it goes to Congress and Congress has to decide.
Speaker 5: But the deck is stacked very heavily in favor of
Speaker 5: the president. There needs to be two thirds in the
Speaker 5: House and two thirds in the Senate agreeing that he's
Speaker 5: unable to his job before before he loses. So it's
Speaker 5: it's really it's never been used. Section three has been used.
Speaker 5: President's going in for Kolonoskoy, he's going to be unconscious
Speaker 5: for a couple of hours. He hands over power to
Speaker 5: the vice president. That's happened three times, but Section four
Speaker 5: has never been used. And you know, a lot of
Speaker 5: people look at it and think, oh, well, if the
Speaker 5: president is nuts, then the vice president and cabinet should
Speaker 5: say so, and then then that'll remove him from office.
Speaker 5: But it won't. If he's loocid enough to contest the action,
Speaker 5: it would probably result in him getting his powers back
Speaker 5: within a few days, and now he'd be mad. So
Speaker 5: it's not I'm not sure how it relates to self pardons,
Speaker 5: other than the possibility that if they thought he was
Speaker 5: about to try to pardon himself, maybe they could invoke
Speaker 5: Section four. I went, I went and found the Washington
Speaker 5: Post piece you're talking about. I had read it before
Speaker 5: Lawrence Tribe normalize and it's one of these things and
Speaker 5: I and I should say this in general, a lot
Speaker 5: of the discussion about presidential self pardons gets these headlines,
Speaker 5: and it's not always the authors that let's say this.
Speaker 5: Sometimes it's just the headline oversimplifying. But the headline says, no,
Speaker 5: Trump can't pardon himself. The Constitution tells us so, and
Speaker 5: you can find things that are equally certain of people
Speaker 5: saying yes, Trump can pardon himself. The Constitution tells us so,
Speaker 5: and they're both wrong. The Constitution doesn't tell us one
Speaker 5: way or the other. We've got it. It's Schrodinger's cat, right.
Speaker 5: We won't know until there's an actual case and when
Speaker 5: and if it happens a chortal rule on it, then
Speaker 5: we'll know. All we can say at this point is
Speaker 5: we don't know. The president can try. It might work,
Speaker 5: it might not, and we can say, hey, here's what
Speaker 5: I would say if I were a judge, and I
Speaker 5: would agree with Tribe painter in Eisen in this Washington
Speaker 5: Post piece saying, I think the best reading of the
Speaker 5: Constitution is that the president can't pardon himself. But there
Speaker 5: are good arguments on both sides. And I found where
Speaker 5: they talked about Bonham versus College of Physicians. That was
Speaker 5: their source for the notion that you can't be the
Speaker 5: judge in your own case. I'm actually kind of proud
Speaker 5: that it didn't occur to me to link Bonham's case
Speaker 5: with self pardons, because I think that's a very roundabout
Speaker 5: and obscure way to get to that point. One of
Speaker 5: the main arguments that the president can't parton himself is
Speaker 5: that you can't be the judge in your own case.
Speaker 5: And remember I said that it was about some obscure
Speaker 5: medical licensing issue. It turns out that's the part of
Speaker 5: the case that they were drawing on, which is why
Speaker 5: I didn't even occur to it. It didn't even occur
Speaker 5: to me.
Speaker 4: Isn't there also the notion that a pardon is inherently
Speaker 4: the nature of it is that it's for someone else.
Speaker 5: Yeah, So that was the main argument that I added
Speaker 5: In twenty twelve. A friend of mine in law school,
Speaker 5: when I was writing this original article was only thirty
Speaker 5: pages long. I couldn't put in everything I wanted. He said,
Speaker 5: you should argue a textual argument that the pardon is
Speaker 5: something that's inherently bilateral. It's something you have to give
Speaker 5: someone else, not something you give to yourself. And I said, now,
Speaker 5: I don't know. I don't think so. I don't want
Speaker 5: to make room for that. Then sixteen years later, when
Speaker 5: I'm writing it, it occurs to me, I think about
Speaker 5: it more that that's not actually worth including, that's not
Speaker 5: just worth including that's actually the best argument there is.
Speaker 5: All of this other stuff is sort of well, like
Speaker 5: you can't be a judge in your own case. Of
Speaker 5: courts will say you can't be the judge in your
Speaker 5: own case when they're ruling against you being the judge
Speaker 5: in your own case. But there are other instances where
Speaker 5: they allow all kinds of self dealing, and they conveniently
Speaker 5: forget to mention that. But if you can find something
Speaker 5: in the text of the Constitution itself, that's the best
Speaker 5: kind of argument for me. That's persuasive to me. So
Speaker 5: with that argument, the idea is the argument that the
Speaker 5: president can pardon himself is it doesn't say he can't.
Speaker 5: It says he shall have power to grant pardons, and
Speaker 5: it says there's an exception for impeachment. It doesn't have
Speaker 5: any other exceptions. They say, well, if they wanted to
Speaker 5: make an exception, then they would have said, and they didn't,
Speaker 5: so he can. He can do it. But there are
Speaker 5: limits inherent in what the definition of a pardon or
Speaker 5: granting a pardon is in itself. So, for instance, I
Speaker 5: mentioned before, you can't pardon someone for something he hasn't
Speaker 5: done yet. You can only pardon past acts doesn't say
Speaker 5: that anywhere in the Constitution. Where do they get that from. Well,
Speaker 5: the courts are very clear that you can only pardon
Speaker 5: things that have already happened. But it's inherent in the
Speaker 5: notion of what a pardon is. So this argument is
Speaker 5: the same thing that a pardon is just by definition,
Speaker 5: something you give to someone else. And you can look
Speaker 5: at other words that have the same Latin root paradonai,
Speaker 5: like donate or condone. Like you wouldn't say I condone
Speaker 5: my own actions. That doesn't make sense. You wouldn't say
Speaker 5: I'm making a donation to myself. That doesn't make sense.
Speaker 4: If you said pardon me, you're asking for others to
Speaker 4: excuse something that you have done. In like a social situation.
Speaker 4: If I say pardon me, Matt, or I have beltched
Speaker 4: or something, Matt would say of course, yeah, good sir.
Speaker 3: You know, and stop a builching in my direction.
Speaker 5: Yes, that probably also has roots in Mary Old England too.
Speaker 5: But I think in addition to the argument that a
Speaker 5: pardon is inherently something you give to someone else, and
Speaker 5: the notion that the courts prove of people being the
Speaker 5: judge in their own case, there's also a historical argument
Speaker 5: based on how the people debating the constitution the Constitutional
Speaker 5: Convention talked about pardon powers. They were worried about giving
Speaker 5: the pardon power to the president, and Edmund Randolph, one
Speaker 5: of the delegates, proposed This is all recorded in James
Speaker 5: Madison's notes. Edmund Randolph said, well, we need to make
Speaker 5: an exception. We need to not allow presidents to pardon
Speaker 5: people for treason. And the reason he said was the
Speaker 5: president may himself be guilty. He said, the traders may
Speaker 5: be his own instruments, and so we can't let the
Speaker 5: president have the power to pardon these other traders that
Speaker 5: he's a trader along with. And James Wilson, another delegate
Speaker 5: later on the Supreme Court responded, he said, if the
Speaker 5: president be himself a party to the guilt, he can
Speaker 5: be impeached and prosecuted. And everyone said, oh, yeah, that's right,
Speaker 5: And they voted and rejected Randolph's motion, and they didn't
Speaker 5: restrict the pardon power for cases of treason, and they
Speaker 5: didn't talk about self pardons. But what this tells us is,
Speaker 5: first of all, if any of those people thought that
Speaker 5: the president could pardon himself, the notion that, well, if
Speaker 5: the president's guilty, we can just prosecute him. That wouldn't
Speaker 5: have been persuasive at all, and no one said that,
Speaker 5: so they must not have thought that the president can
Speaker 5: pardon himself. Additionally, if anyone thought the president could pardon himself,
Speaker 5: then they would have talked about restricting that, not saying
Speaker 5: he couldn't pardon traders, but that he couldn't pardon himself.
Speaker 5: But they didn't. They did they say the president can
Speaker 5: pardon himself. No, but I think that that little piece
Speaker 5: of evidence shows that they thought that. It literally went
Speaker 5: without saying that a self pardon is not possible. I
Speaker 5: think that there is an argument on the other side
Speaker 5: of this, which is that the president is both the
Speaker 5: sovereign and a person, and so he can pardon himself
Speaker 5: because it's it would be Trump, the president giving a
Speaker 5: pardon to Trump the person, and so it's inherently bilateral
Speaker 5: that way. So you know, it's it's not a killer argument.
Speaker 5: Like I said, there are good arguments on both sides,
Speaker 5: but to me, it's a it's a pretty persuasive one.
Speaker 5: I think it's the best argument against self pardons because again,
Speaker 5: it's in the constitution it's inherent in the definition of
Speaker 5: the word parton itself.
Speaker 1: Absolutely, But where does this lead us? Will be back
Speaker 1: after a word from our sponsor. Going off our hypothetical
Speaker 1: pardon me example, let's go into the realm of speculation
Speaker 1: just a bit. Let's imagine that the current president, or
Speaker 1: just any president does some how successfully attempt this move,
Speaker 1: they successfully pardon themselves. What would happen afterward? What sort
Speaker 1: of impact would this have on the US government, on
Speaker 1: the hearts and minds of the public. What kind of
Speaker 1: consequences or implications could we possibly expect if something like
Speaker 1: this were ever to occur.
Speaker 5: Yeah, I think that ultimately that's the most important question, because,
Speaker 5: just like impeachment, the pardon power exists in a political context.
Speaker 5: If the president thinks it's a good idea to pardon someone,
Speaker 5: then he does it, and that's why he has the power.
Speaker 5: And so thinking about how it would look in my
Speaker 5: own writing, I set up this hypothetical example of a
Speaker 5: president and who has been accused of all these crimes,
Speaker 5: and there's some questions whether you can prosecute him while
Speaker 5: they're in office. So he's running for he's in a
Speaker 5: second term, so there's there's an election going on and
Speaker 5: it's very divisive, and the other party is saying the
Speaker 5: president's a crook, and if I get elected, the Kennedy,
Speaker 5: the other party says, if I get elected, I'm going
Speaker 5: to appoint this guy as prosecutor and we're going to
Speaker 5: go after the president, kind of like what Trump was
Speaker 5: saying he would do about Hillary Clinton, although he didn't
Speaker 5: end up doing it, and that person wins the election.
Speaker 5: And the President has been saying all along, I didn't
Speaker 5: do anything wrong, and my people in my administration haven't
Speaker 5: done anything wrong. And so he waits until again he's
Speaker 5: not politically accountable anymore, and he says, well, I'll just
Speaker 5: read here. He says, for ten months, these scurreless accusations
Speaker 5: have paralyzed the country. We've been unable to work on
Speaker 5: the real problems Americans face. That problem was about to
Speaker 5: get worse. Enough is enough with this pardon. I'm ending
Speaker 5: this expensive distraction. Right. He has the power to do this,
Speaker 5: and he's going to use it. So that's how the President,
Speaker 5: i think most likely, would frame it. That he's not
Speaker 5: forgiving himself for doing something wrong, he is preventing these
Speaker 5: runaway prosecutors from doing an injustice to him. That's how
Speaker 5: he would spin it, and a certain percentage of the
Speaker 5: country would probably go along with that. So politically, the
Speaker 5: question would be how many people would buy that line
Speaker 5: of rhetoric. I think it would be a scandalous enough
Speaker 5: act to enough people that the president would wait until
Speaker 5: he was on his way out of office to do it,
Speaker 5: especially if he couldn't be secuted while in office. That's
Speaker 5: an open question too. But if you can't prosecute the
Speaker 5: president while he's in office, and you can, if you're
Speaker 5: the president, pardon someone who hasn't been charged with anything yet,
Speaker 5: then that sets up this potential. So on his way
Speaker 5: out of office he pardons himself. If he's on his
Speaker 5: way out of office, then the political fallout as much less. So,
Speaker 5: to answer your question, if the president's not on his
Speaker 5: way out of office, if they're pursuing him and he
Speaker 5: says I'm I'm just gonna pardon myself, I think the
Speaker 5: political follow would be tremendous. I think the prosecutor who
Speaker 5: was pursuing him would not just say, oh, I guess
Speaker 5: I can't prosecute you. Then he would challenge it in
Speaker 5: court because it's not clear that the president can pardon himself.
Speaker 5: It would be swiftly appealed up to the Supreme Court,
Speaker 5: I think, but it would. It would It would be
Speaker 5: a divisive issue, and the people who agree with the
Speaker 5: president that he didn't do anything wrong would think it's great,
Speaker 5: and the people who disagree with the president and think
Speaker 5: that he's a crook would think that it's terrible. And
Speaker 5: I think there'd be a lot of people in the
Speaker 5: middle who would say, I don't know what happened, if
Speaker 5: he's a crook or not. But I don't think that
Speaker 5: pardoning yourself is okay. I think, you know, you need
Speaker 5: to not put yourself above the law. You need to
Speaker 5: let other people make that decision. And that takes us
Speaker 5: back to Nixon. I mean, talk about what would have
Speaker 5: happened if Nixon had pardoned himself. We can only speculate,
Speaker 5: but we do know what happened after Nixon resigned and
Speaker 5: shortly thereafter Gerald Ford, who came into office untouched by
Speaker 5: the whole Watergate scandal. He had very high approval ratings
Speaker 5: and he decides he's going to pardon Nixon and immediately
Speaker 5: very controversial decision. His approval ratings drop most of the
Speaker 5: data that I've seen suggest it cost him the election
Speaker 5: in nineteen seventy six. Two years later, he's running for reelection.
Speaker 5: He are not reelection, but to stay in office for
Speaker 5: more years, and he narrowly loses. He it was a
Speaker 5: close election, and if you look at the data what
Speaker 5: people thought about that part and that pardon cost him
Speaker 5: the election. So you can only imagine how much worse
Speaker 5: it would be if Nixon had done it himself. Ford said,
Speaker 5: we've got to move on. This is the right thing
Speaker 5: to do. If Nixon had said that, it wouldn't have
Speaker 5: been convincing at all. So politically, if the president's still
Speaker 5: in office, it would be a it would be throwing
Speaker 5: a bomb. If he's on his way out of office,
Speaker 5: it would be controversial, but he wouldn't be president anymore,
Speaker 5: so it wouldn't It would be tabloid fodder, right, it
Speaker 5: would be cable news fodder, but it wouldn't. It wouldn't
Speaker 5: have the same sort of political impact. I think everyone
Speaker 5: would just wait and see what the courts had to
Speaker 5: say about it.
Speaker 1: But then on the flip side of the speculative world,
Speaker 1: we're exploring here, what if a standing president or president
Speaker 1: on the way out attempts to self pardon, and that
Speaker 1: attempt fails, wouldn't they still encounter the same enormous potential
Speaker 1: for backlash because I imagine a lot of people who
Speaker 1: were going back to what you said about the supporters
Speaker 1: thinking it's a good idea, the opponent's thinking it's a
Speaker 1: bad idea. Wouldn't a lot of people in the anti
Speaker 1: administration side see that as a smoking gun, more or
Speaker 1: less indicating some sort of truth to all the problems
Speaker 1: they had with that administration.
Speaker 5: Well, I think they could. They could look at that
Speaker 5: and say, see, see what kind of person this is.
Speaker 5: But I think that supporters would say what they've been
Speaker 5: saying all along, if they if they have supported them
Speaker 5: this long in saying that the accusations against him are fause,
Speaker 5: they would probably go along for the ride there too.
Speaker 5: And and that's an important thing about pardons that I
Speaker 5: think has overlooked a lot. I had a piece. I
Speaker 5: don't know if anyone saw it, but I I but
Speaker 5: I liked it. It was in the New York Daily
Speaker 5: News a few weeks ago, where you hear people say
Speaker 5: this a lot, that a pardon is a declaration of guilt,
Speaker 5: and that accepting a pardon is an admission of guilt,
Speaker 5: and so you, yeah, you might. You might have people saying, uh, see,
Speaker 5: he pardoned himself. That means he's admitting he was guilty.
Speaker 5: But that's that's actually not right. That notion that a
Speaker 5: pardon is an admission of guilt, accepting a pardon is
Speaker 5: an admission of guilt is taking this one line from
Speaker 5: this one Supreme Court case out of context and reading
Speaker 5: it into a completely different one and and really missing
Speaker 5: the point. Presidents almost always use pardons to forgive guilty
Speaker 5: people who may don't deserve the punishment that they got,
Speaker 5: but they can also Presidents can also use the pardon
Speaker 5: power to exonerate people, and it's not the most usual
Speaker 5: use of it, but sometimes they do. President Ford pardon
Speaker 5: Nixon for giving someone who is guilty. He also pardoned
Speaker 5: Tokyo Rose. She had been convicted of making propaganda broadcasts
Speaker 5: during World War Two, and she was an American citizen
Speaker 5: living in Japan, and they said, oh, she was broadcasting
Speaker 5: these terrible things. Turns out sixty minutes does his story.
Speaker 5: It turns out the case against her was based on
Speaker 5: perjury and it was totally trumped up. Charges against her
Speaker 5: and she was completely innocent, and sixty minutes had this
Speaker 5: big story about it, and President Porziella, this is terrible.
Speaker 5: Let's do what we can to pardon her, and he
Speaker 5: did not because she was guilty. It wasn't a declaration
Speaker 5: of guilt because she wasn't guilty. And when she accepted
Speaker 5: the pardon, she wasn't admitting she was guilty. She was
Speaker 5: accepting it because she wasn't. And Trump himself just pardoned
Speaker 5: Jack Johnson posthumously, the boxer again, not because he was
Speaker 5: guilty but should be forgiven, but because he wasn't guilty.
Speaker 5: The case against him was bogus. So this notion that
Speaker 5: he won't do it because it would require him to
Speaker 5: admit guilt, I think is wrong, and people are missing
Speaker 5: the potential for a president to put it in the
Speaker 5: language that I had it in my book, where he says,
Speaker 5: I'm not guilty, I'm innocent, and these people are coming
Speaker 5: after me anyway even though I'm innocent. But I have
Speaker 5: the power to stop that, so I'm going to use
Speaker 5: that power. That's what he would say, and so any
Speaker 5: political reaction would have to reflect that context. If the
Speaker 5: president was saying I'm guilty, but Hey, it's good to
Speaker 5: be the king and pardon himself. That would be much
Speaker 5: more controversal, much more unacceptable, but I think also, as
Speaker 5: a result, much less likely to happen.
Speaker 3: So let's talk kind of an out there hypothetical strategy, Noel,
Speaker 3: that you were talking about earlier. Would it be possible
Speaker 3: for a sitting president to use one of the clauses
Speaker 3: to step down as president temporarily accept a pardon from
Speaker 3: the person who is then president in that momentary timeline,
Speaker 3: and then step back in.
Speaker 5: Yes, so, I guess that's what you were referring to
Speaker 5: Section four and twenty fifth Amendment about Yes, the president
Speaker 5: could do that. Now, it's important to make a distinction
Speaker 5: about whether such a pardon would be valid and whether
Speaker 5: such a pardon would be able to be done with impunity,
Speaker 5: because if the president did that, and then presumably you know,
Speaker 5: once he's back, he pardons the vice president quid pro quo,
Speaker 5: those pardons would be valid. Right when you're the president
Speaker 5: or when you're the acting president, you pardon someone that
Speaker 5: that pardon sticks, But you also can be impeached for that,
Speaker 5: and you can be prosecuted for it too, if it's
Speaker 5: part of a criminal enterprise. So if if I give
Speaker 5: the president a million dollars in exchange for pardon and
Speaker 5: he pardons me, that pardon is valid, but we're both
Speaker 5: going to go to prison for the bribe. And because
Speaker 5: you can only pardon something that's already been done. If
Speaker 5: the pardon is this criminal, you can't pardon yourself for
Speaker 5: pardoning yourself, right the last one. They'll always get you
Speaker 5: for the last one. So yeah, the president could could
Speaker 5: hand over power to the vice president, the vice president
Speaker 5: pardons him, hands power back, he returns the favor, or
Speaker 5: he could resign. That's that's basically what Nixon and Ford did.
Speaker 5: Nixon resign, Ford pardon Nixon for didn't need a pardon,
Speaker 5: So there is no sort of quid pro quo there.
Speaker 5: If it's part of a corrupt conspiracy, then it would
Speaker 5: be punished as part of a corrupt conspiracy, even though
Speaker 5: the pardons themselves would probably stick. I don't think there's
Speaker 5: any question about that. There are some people who would
Speaker 5: say that a court would refuse to honor such a pardon,
Speaker 5: but I based on the case, I don't see that happening.
Speaker 5: I think it's also worth mentioning how this would play
Speaker 5: out if you have a pardon, it doesn't actually mean
Speaker 5: anything unless someone tries to do something to you that
Speaker 5: the pardon says they can't. So if you have a
Speaker 5: pardon and they say, well, I'm going to prosecute you say,
Speaker 5: well you can't because I have a pardon. Then they
Speaker 5: try to prosecute you anyway, then the court has to
Speaker 5: decide whether the pardon is valid or not. If no
Speaker 5: one tries to pardon the president, he pardons himself, or
Speaker 5: the vice president pardens him and no one tries to
Speaker 5: prosecute him, then we don't know if it's valid or
Speaker 5: not because it doesn't matter. It's only when he tries
Speaker 5: to do something that would only be he'd only be
Speaker 5: able to do if the pardon were valid, that we
Speaker 5: would find out. There's there's you know, a lot of
Speaker 5: a lot of things would have to happen before a
Speaker 5: president would get prosecuted. It's not just the self pardon
Speaker 5: being a remote hypothetical, it's it's also the prosecution itself
Speaker 5: that was remote. So, you know, I love talking about
Speaker 5: these hypotheticals, but it's it's also hard to imagine the
Speaker 5: vice president wanting to get his hands dirty in that way.
Speaker 5: I'm not saying that it would never happen. I'm just
Speaker 5: saying that the more things you add in that make
Speaker 5: it unlikely, the more hypothetical it is, the less instructive
Speaker 5: it is. It's hard to draw lessons from it.
Speaker 4: Ford Nixon. To me, that's like a backroom conversation where
Speaker 4: Nixon is like, no, that's how I see it. Why
Speaker 4: did Ford parton Nixon knowing there would be political fallout.
Speaker 4: It seems like it was something he was like doing
Speaker 4: a favor for for Nixon.
Speaker 5: Yeah, there are there are a lot of people who
Speaker 5: think that Nixon made a deal with Ford. I'll resign
Speaker 5: and then you pardon me. And I think Ford was
Speaker 5: inclined to pardon Nixon because that's just the kind of
Speaker 5: guy that Ford was. He he didn't he didn't think
Speaker 5: that we needed to continue beating up on Nixon. He
Speaker 5: thought that losing the office was punishment enough, all that
Speaker 5: sort of stuff. And I don't I don't think that
Speaker 5: Nixon really had any leverage over Ford. Like if he says, well,
Speaker 5: I'll resign, but only if you promised to pardon me. Ford,
Speaker 5: if he was if he was answering honestly, he said, well,
Speaker 5: I was going to pardon you anyway? Why are you
Speaker 5: saying that? Or or he could say why I which
Speaker 5: which he actually did say. This is all in in
Speaker 5: his autobiography, and it's been reported and al Haig's book. Well,
Speaker 5: Haigu came to Ford before Nixon resigned. Haigu was Nixon's
Speaker 5: chief of staff and said will you will you commit
Speaker 5: to pardoning Nixon? And Ford didn't say yes, and he
Speaker 5: didn't say no. And when he told his people later,
Speaker 5: they said, well, you need to be more clear. You're
Speaker 5: not committing to anything. So he called up hag He said,
Speaker 5: I'm not committing to anything. But Nixon didn't have any leverage.
Speaker 5: He was going to get impeached and removed. He was
Speaker 5: going to have to resign anyway, pardon or no pardon.
Speaker 5: Did he really want to pardon? Sure? Was Ford going
Speaker 5: to pardon him anyway? Sure? But was there a deal?
Speaker 5: I don't think so.
Speaker 4: I think what I was getting at was that it
Speaker 4: was more of a courtesy. And I'm wondering why the
Speaker 4: conversation now isn't like, well, of course, Pence will pardon Trump.
Speaker 4: Why are we talking about Trump pardoning himself when the
Speaker 4: president has kind of been that has a courtesy, your
Speaker 4: VP will pardon you anyway.
Speaker 5: Well, I think maybe Pence will look at what happened
Speaker 5: to Ford when Ford pardon Nixon, and say, if I
Speaker 5: want to get elected in twenty twenty or whatever the
Speaker 5: next election is, if this happened, I would have to
Speaker 5: think seriously about whether to do this or not. And
Speaker 5: if whatever it is that he's partnering Trump for is
Speaker 5: something that involves himself as well, then that would be
Speaker 5: politically difficult for him to do. Ford had the political
Speaker 5: space because he hadn't been mixed up in Watergate. He
Speaker 5: had the space to do that and not have it
Speaker 5: look like an inside deal. In the same way, when
Speaker 5: Bush pardoned the Iran contract defendants, that was controversial for
Speaker 5: that reason because Bush was one of them. It looked
Speaker 5: like he was helping them out of a mess that
Speaker 5: he was in. Two So, yeah, a lot would turn
Speaker 5: on that is Pence involved in whatever he's partnering him
Speaker 5: for or not As far as courtesy is concerned, you know,
Speaker 5: it's it's a political question. He would he would look
Speaker 5: at the polls and they would they would survey people
Speaker 5: and he wouldn't have to decide right away. This all
Speaker 5: turns on the notion that the president is being prosecuted
Speaker 5: for something, though, and I think, yeah, that's that's possible
Speaker 5: that a former president would be pursued by a prosecutor.
Speaker 5: But without knowing exactly what the case is and exactly
Speaker 5: what the what the dynamics of it all are, it's
Speaker 5: hard to say what Pence would or wouldn't do in
Speaker 5: that situation. Because if if there's a smoking gun and
Speaker 5: he looks guilty and it looks bad, then a pardon
Speaker 5: would look bad. And if it looks like it's some
Speaker 5: technical thing or some disputable thing, and Pence wants the
Speaker 5: country to move on and he thinks that he can
Speaker 5: sell that idea that this is about moving on, then
Speaker 5: maybe he would. But he would he would have to
Speaker 5: look at what happened for it and and realize that
Speaker 5: unless he has thirty points of approval ratings to the spare,
Speaker 5: he probably has to be real careful about.
Speaker 1: That, because it's tantamount to political suicide, or at least
Speaker 1: it seems that's the That's the way the average voter
Speaker 1: would would look at a vice president right there, would
Speaker 1: gaze unfavorably upon that, regardless of the circumstances that led
Speaker 1: to that decision.
Speaker 5: Well, I think that's the main thing that's different between
Speaker 5: now and Watergate. You can talk about an average voter
Speaker 5: in the seventies, and we were still being governed from
Speaker 5: the center at that point, and now things are so
Speaker 5: polarized and we've got two sides that have completely irreconcilable
Speaker 5: versions of reality, and so there isn't an average voter
Speaker 5: really like there isn't anyone in the middle. So I'm
Speaker 5: not sure that I'm not sure that the political suicide
Speaker 5: notion is something that translates exactly from the seventies. I mean,
Speaker 5: he would have to take that seriously, he'd have to
Speaker 5: look at what the poles say, but it would it
Speaker 5: would play out in a weirdly different way. The same
Speaker 5: with impeachment. Nixon didn't go until the Republicans turned on him.
Speaker 5: The Democrats were in control of Congress. It looked like
Speaker 5: they were going to drive the impeachment forward, but it
Speaker 5: wasn't going to be successful until and unless the Republicans
Speaker 5: turned against him. Well, that's the same situation now. You
Speaker 5: don't get two thirds to vote to convict in the
Speaker 5: Senate unless both parties agree. But you don't have anyone
Speaker 5: in the middle anymore, and the Republicans have to pay
Speaker 5: attention to the Republican primary voters. And with that polarization,
Speaker 5: it's harder to paint a picture where something happens and
Speaker 5: everyone agrees that it's bad, like it was in the seventies.
Speaker 1: And I, you know, I'm having a hard time emphasizing
Speaker 1: how much I appreciate that point about polarization, because for
Speaker 1: everyone listening, regardless where you find yourself falling in your
Speaker 1: own personal, political or ideological stances, the fact of the
Speaker 1: matter is that the public in general is increasingly polarized.
Speaker 1: And although precedent does exist, Professor cult, I think you
Speaker 1: make some fascinating, fantastic, and to some degrees disturbing points
Speaker 1: about the differences between previous decades and the age in
Speaker 1: which we live today. Before we conclude today's episode, Professor,
Speaker 1: we have a question for you that we are certain
Speaker 1: is on the minds of our fellow audience members here,
Speaker 1: and that is this, where can where can listeners go
Speaker 1: to learn more about your work and to learn more
Speaker 1: about the concept of pardoning or self pardoning specifically, So.
Speaker 5: I would recommend if people are interested in my book.
Speaker 5: That Chapter two of the book is the most comprehensive
Speaker 5: treatment that I've produced on the self pardon question. For
Speaker 5: twenty years, I was the only person talking about it.
Speaker 5: Most of the discussion in the last year and a
Speaker 5: half has drawn on the things that I've said, whether
Speaker 5: they cited them or not. I think the book is
Speaker 5: the best place to go. Just go to Amazon, type
Speaker 5: in my last name, Kalt and constitutional cliffhangers, and it
Speaker 5: should come right up. I think they've sold out of
Speaker 5: the hardcovers, but the paperbacks are still available, and the
Speaker 5: ebook version is still there. If they want to read
Speaker 5: the original article in the Yell Law Journal nineteen ninety six, again,
Speaker 5: google my name Calt and pardon me and SSRN. It'll
Speaker 5: come up there and you can download the original article.
Speaker 3: Awesome, We'll get out there on Amazon. Find that book,
Speaker 3: check it out. There's all by the way, Professor called
Speaker 3: you are all over just the Washington Post and the Internet.
Speaker 3: When people are talking about this subject, you get a
Speaker 3: lot of calls, don't you.
Speaker 5: I do. It's a nice change from twenty years of
Speaker 5: people thinking that it was ridiculous to even be talking
Speaker 5: about this. Probably my highlight was in the preface of
Speaker 5: the book, I talk about how I'm writing this book,
Speaker 5: and I'm at this reception and I'm talking to this
Speaker 5: prominent legal thinker and he asked me what I'm writing about,
Speaker 5: and I tell him, and he looked at me and says,
Speaker 5: why are you writing about that? And fast forward to
Speaker 5: twenty eighteen and he has a piece in the Washington
Speaker 5: Post about out whether the president can part himself.
Speaker 3: So, oh man, it's a little terrifying that you're you know,
Speaker 3: you were on the right track.
Speaker 1: But it's a prescient as well. And we would like
Speaker 1: to thank you again for being so generous with your
Speaker 1: time with us today and for correcting or clarifying some
Speaker 1: of the misconceptions regarding pardons in general that are so
Speaker 1: common in the US, and I would say in larger
Speaker 1: international context as well. So ladies and gentlemen, thank you
Speaker 1: for tuning in. Please let us know further questions that
Speaker 1: you may have while you're listening to today's episode regarding
Speaker 1: the concept of self pardoning. You can find Matt Nole
Speaker 1: and I on Instagram. You can find us on Facebook,
Speaker 1: you can find us on Twitter, you can find us
Speaker 1: on our fan page. Here's where it gets crazy.
Speaker 4: And boy does it ever get crazy.
Speaker 3: In that fan page, Professor called do you have a
Speaker 3: Twitter that you'd like to plug here?
Speaker 5: Yes, I'm on Twitter. I'm at Profbrian Cault.
Speaker 3: There you go, prepare yourself for a lot of inquisitive minds.
Speaker 5: Well, you know Twitter brings out the best in people,
Speaker 5: doesn't it.
Speaker 3: Yes, that's what I hear. And that's the end of
Speaker 3: this classic episode. If you have any thoughts or questions
Speaker 3: about this episode, you can get into contact with us
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Speaker 3: is to give us a call. Our number is one
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